Articles Posted in Blood Testing

Why Does Michigan’s Law of Implied Consent Exist?

The first DUI laws went in the books all the way back in the 1950’s when cars where just starting to become very common. Back then, there were no breath tests, so that law enforcement tool in a DUI investigation was not available to police officers. That only happened ten years later, in the 1960s. Technology has improved a lot since then, and the law has changed too, because the law of implied consent is younger than the first breath tests. Back in the “olden days” people could refuse a breath test in a drunk driving case without an possible sanction. That is no longer true, and today, there are serious consequences if you unreasonably refuse to to a breath test.

The Michigan Law of Implied Consent

Most of the time if you are pleading guilty it is because your lawyer has successfully engaged in plea bargaining with the prosecutor. Consequently, preparation for court when pleading guilty really begins to take place almost as soon as you first hire your lawyer. Therefore, the total preparation will take place over several weeks or months, and sometimes even years before you are set to appear in court. At a minimum the following things should have occurred before you plead guilty.

  1. You’ve reviewed all the discovery with your attorney.
  2. You’ve discussed possible defenses with your attorney.

A new comprehensive study on the effects of marijuana use and driving has demonstrated that the use of marijuana has far less impact on driving than does the use of alcohol. Despite the fact that the emerging science suggests that drivers can use marijuana and operate their vehicles safely, the DUI laws in Michigan treat marijuana as being equal to or even more dangerous than alcohol.

Part of the reason for this disparity is that the public policy behind Michigan’s DUI laws are mired in many of the archaic misapprehensions that historically existed about marijuana and its impact on driving. Now that recreational marijuana is legal in Michigan for those above 21 years of age, a rational discussion of what, if any, effect marijuana has on driving is long overdue.  To address this issue, Michael A. White and Nicholas R. Burns, preformed a meta-analysis on over 17 available marijuana studies to clarify the actual relationship between marijuana, specifically active THC, and driving.

Their study: The risk of being culpable for or involved in a road crash after using cannabis: A systematic review and meta-analyses, published in Drug Science, Policy and Law, concluded that it is likely that marijuana does not actually cause more accidents than the normal rate of accidents occurring by all drivers.  To get to this determination, they used a process called meta-analysis, which is the review of previously published studies to obtain a more comprehensive result than any single study is capable of.  For this analysis, they used 17 studies conducted between 1982 and 2020.  These studies were conducted in several countries by different researchers with differing results.  White and Burns then their own testing methodology in an effort to control for inherent biases in the prior studies.

While President Bidens Investment and Infrastructure and Jobs Act (IIJA) does require automakers to incorporate advanced impairment detection technology, and sets a timeline for doing so, it is soley up to the Secretary of Transportation to define what the specific technology solution will be. The only guideline in the IIJA is that the technology be “advanced” and “passive” and that it either measure driver impairment through driver performance, measure driver intoxication by analyzing the driver’s blood alcohol level, or both.

MADD Has Already Made Suggestions

MADD was instrumental in the drafting and passage of this legislation, and have indicated that such AIDP will:

On November 15, 2021, President Biden signed into law the bipartisan Investment Infrastructure and Jobs Act (IIJA). This new law contains a provision requiring that all passenger vehicles eventually be equipped with technology that will stop drunk drivers. New cars may start utilizing such technology immediately, but the law won’t require this advanced impaired driving technology any sooner than 2 years from now, though it’s likely to take far longer.

What is the Timeline for Requiring Advanced Impairment Detection Technology?

As previously indicated in our previous article entitled Infrastructure Bill to Combat Drunk Driving by Requiring Alcohol Monitoring Technology the new law does not, with any degree of specificity, indicate what technologies are to be utilized for this purpose.  Instead, the law sets forth a timeline for the Secretary of Transportation to write the specific motor vehicle safety standard. Section 24220(c) indicates that not later than 3 years after the date of enactment of the IIJA, the Secretary of Transportation (SOT) shall issue a “final rule” requiring that a motor vehicle safety standard be added to the relevant section of the federal code.

The bipartisan Investment Infrastructure and Jobs Act (IIJA) seeks to combat drunk driving by requiring all new passenger vehicles be equipped with Advanced Alcohol Monitoring Technology. The drive behind this section of the 2702-page IIJA was led by Michigan Congresswoman Debbie Dingell. MADD also played a significant role in the development of this law.

However, until now, their efforts have focused on requiring all first-time drunk driving offenders to use Breath Alcohol Ignition Interlock Devices (BAIID). The IIJA instead focuses on different type of technology and this technology will be required in all passenger vehicles, regardless of whether the driver has ever been charged with drunk driving.

Congresswoman Dingell and MADD’s combined efforts bore fruit on November 15, 2021, when President Joe Biden signed into IIJA into law. Section 24220 of the Act is entitled “Advanced Impaired Driving Technology” (AIDP) and requires that “drunk and impaired driving prevention technology” become standard equipment in all new passenger motor vehicles.

The number of High BAC Superdrunk OWI and Child Endangerment Cases are on the rise in Michigan. This is due to a variety of factors, including an increase in binge drinking among college educated, divorced or separated males, pandemic isolation and school closures.

One recent study published in Science News[i] suggests that between 2015 and 2019 binge drinking among men 65 and older increased by about 20% from 12.8 percent to 15.7 percent. The study suggests that binge drinking did not increase for older women during the same period. College educated women and separated or divorced men were both also at higher risk of binge drinking. The use of marijuana or tobacco increased risk of binge drinking for both men and woman alike. The study had a sample size of 18.794.

Another study, this one published by Journal of Environmental Research and Public Health, supports the proposition that the pandemic has had a great influence on the recently higher prevalence of both Super Drunk Driving and Child Endangerment OWI.

Barone Defense Firm Partner and Senior Trial Attorney Michael J. Boyle recently was one of the guest presenters at the Criminal Defense Attorneys of Michigan (CDAM) Fall Conference at Boyne Mountain.  The annual seminar was attended by hundreds of criminal defense attorneys from throughout the State of Michigan. CDAM is one of the largest and well-respected membership groups in the State and is dedicated to the improvement of criminal advocacy across all practice areas in the criminal justice system.

Boyle accepted the invitation to speak and was the only attorney that presented on two topics.  He presented on Secure Continuous Remote Alcohol Monitoring, known as SCRAM, and he also did a presentation on Self-Defense and understanding Michigan’s Stand Your Ground and the Castle Doctrines.

Boyle has enjoyed the opportunity over the last several years to be part of the process of educating and teaching other lawyers the complex understanding and best practice techniques in representing clients on multiple disciplines. He has presented on numerous occasions for the Michigan Association of OWI Attorneys (MIAOWIA), the State Bar of Michigan Marijuana Law Section, CDAM, and the Ohio Association of Criminal Defense Lawyers (OACDL).

Arrests for driving under the influence of Marijuana are up in Michigan, and this means more lawyers are being called upon to understand the complexities of forensic blood testing. The problem is, few lawyers have this expertise, and this is one of the reasons why Barone Defense Firm partner Michael Boyle recently presented on this topic to the Michigan Association of OWI Attorneys.

Part of what Mr. Boyle explained to his colleagues is that there have been many important changes to the way the Michigan State Police Forensic Laboratory conducts their blood tests in drug cases like driving under the influence of marijuana. For example, in recent years, the Forensic Laboratory has purchased new machines for blood alcohol analysis. The name of these blood testing instruments is “gas chromatograph (GC. These instruments use a technique known as Gas Chromatography and with drug testing there is an additional testing called “mass spectroscopy” (GCMS). The old testing method used single column instruments, but the lab now uses head space dual column gas chromatography utilizing a flame ionization detector.

There have also been other changes to the way these drug tests are analyzed, and the results reported. As an interesting aside, while the common nomenclature is to say “blood tests” in fact, the blood itself is literally not actually tested. Here’s a summary of how it works.

The infrastructure spending bill now pending before the United States Senate contains a provision requiring that all manufacturers selling cars in the Unites States install technology that will preclude the vehicle from being operated by an intoxicated driver. This provision was sponsored by Michigan’s Rep. Debbie Dingell, D, among others.

According to the 2702-page bill, the Department of Transportation will be charged with the responsibility to determine the safety standards applicable to the technology and are required to do so within three years. Car manufacturers will then be given an additional two years to comply with these standards. However, if the DOT fails to finalize the rules within 10 years, the agency must report to the US Congress why they failed to comply.

There is little guidance in the bill relative to how the DOT should exercise their authority other than to say that whatever technology they settle on should “passively” and “accurately” monitor a driver’s performance and determine whether the driver is impaired.  Furthermore, the technology must “passively and accurately detect whether the blood alcohol concentration of the driver of a motor vehicle” is too high.

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